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Ruling against 10-year minimum license suspension for drug convictions reverses precedent

nurse_hangs_chemotherapy_drugsThe state’s Professional Nursing Act does not require an automatic minimum ten-year suspension of a nurse’s license over a felony drug conviction, the Commonwealth Court of Pennsylvania ruled August 24 (McGrath v. Bureau of Professional and Occupational Affairs, State Board of Nursing).

The ruling, which affirmed a nurse’s automatic suspension by the State Board of Nursing, but not the minimum ten-year length, reversed a 2014 ruling (Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965) upholding the ten-year minimum.

McGrath was convicted in 2013 of a felony under the Drug Act: Acquisition or Possession of a Controlled Substance by Misrepresentation, Fraud, Forgery, Deception or Subterfuge. Her license was automatically suspended.

Shannon McGrath, the plaintiff, argued her appeal pro se. She contended that the board changed its interpretation of the automatic suspension provision of the Nursing Law in 2013 without engaging in either formal interpretation (by promulgating regulations ) or informal interpretation (by issuing policy guidelines).

The court agreed, noting that the board changed its application of the nursing law based upon an unidentified 2013 directive from the state Bureau of Professional and Occupational Affairs, and relied on the Packer decision to treat McGrath’s suspended license as a revoked license, for restoration purposes.

This meant that the board had no discretion to reissue suspended nursing licenses when appropriate, the court said. In addition, where statutes are penal in nature—as the Nursing Act was—”they must provide a clear and unequivocal warning in language that people generally would understand as to what actions would expose them to liability for penalties and what the penalties would be.”

In overruling the Packer decision, the court cited “what justice demands and what reason dictates.” Precluding individuals from engaging in their profession for ten years before the board has the authority to even review their requests to reissue their suspended licenses prevents the board from exercising its discretion, the court said. In addition, individuals are prevented from earning their livelihood during that time.

Because of the ambiguousness of the Nursing Law, the court also noted, licensees have no guidance regarding what actions result in what punishment, so continuing the ten-year minimum would create “a great injustice or injury” to those individuals.

Two of the court’s justices, in a dissenting opinion, opposed the abandonment of Packer. “Notwithstanding any perceived harshness flowing from our decision in Packer, the decision was not so clearly erroneous to justify unsettling an area of law that this Court settled only two years ago,” these justices said.